Lawfare is defined as the theory and practice of the use of international law as an instrument to advance one’s own interests. Orde Kittrie’s book on ‘Lawfare’ defines it as the use of law as a weapon of war. As per Aurel Sari, the world has retreated from liberal internationalism and Kantian multilateralism into an era of big power camp politics. In this era of geo-economic jostling for global and regional pre-eminence, the kinetic use of force in wars has been replaced by grey zone and hybrid warfare. Such an environment is propitious for strategic use of law to gain advantage against an adversary.
In a globally integrated world with institutions like the UN and its judicial organ the International Court of Justice (ICJ) along with the International Criminal Court (ICC), expertise in international law has assumed vital importance.
Lawfare could be used in a defensive or offensive mode. Examples of defensive lawfare include use of human shields by ISIS to exploit Western countries’ compliance compulsion with International Humanitarian Law (IHL). Offensive lawfare with an elegant variation on Clausewitz’s phrase is “the continuation of politics with legal means”. Examples include the denial of legal protections to terrorists in sanctuaries. These sanctuaries can be in the realm of physical, virtual (internet, media, and global financial system), social, and legal. Domestic laws like the Anti-Terrorism Act 1990 in the US that imposed civil liability on individuals as well as organizations supporting or indulging in terrorism are an example of offensive lawfare.
UN Resolution 1267 imposing a sanctions’ regime against those supporting Al-Qaeda and Osama bin Laden is another example of offensive lawfare. Together with Resolution 1373, that called for prevention of terrorist funding and support, these two constituted an offensive lawfare strategy against terrorism. A state which accepts international law is bound to abide by those obligations. Countries that sign these obligations but fail to bring their domestic laws in compliance with international law earn international censure and isolation. Pakistan’s discomfiture at the hands of the Financial Action Task Force is also a result of the above policy dissonance wherein international law obligations were accepted by Pakistan but domestic laws were not enacted to ensure compliance.
Pakistan’s record in lawfare is far from enviable as it has failed to frame countries like India that violate international law with impunity in Indian Illegally Occupied Jammu & Kashmir (IIOJ&K) or Occupied Kashmir. Some of the weaknesses include the lack of proper expertise, inadequate resources, and absence of a central hub coordinating national lawfare efforts. Pakistan’s greylisting in the FATF is also related to a weak understanding of international law strictures emanating from UN Resolutions 1267 and 1373. The Kashmir dispute and India’s egregiously flawed human rights and international law violation record merited a vigorous lawfare response from Pakistan which has not materialized due to the above capacity deficit.
International Humanitarian Law stipulates that unconsented and effective occupation by an occupying force that does not have sovereign title to the land constitutes occupation. By the above standards, the Indian army is an occupation force in Occupied Kashmir. Pakistan, however, has failed in its offensive lawfare goal of getting the Indian army branded as an occupation force in Occupied Kashmir. To achieve the above end, factual criteria as defined in international law to declare the Indian army as an occupation army needed to be highlighted in the form of a formal invocation to the UN Security Council. Human rights violations by an occupying force become war crimes as per international law and Pakistan has a strong case to prove the Indian army as an occupation force.
The use of pellets by Indian security forces in Kashmir is a grave breach of human rights law, equivalent to a war crime. Similarly, the Indian army’s forced entrance into private residences, detention of victims and their torture is a war crime. As per Article 427 of the UN International Covenant on Civil and Political Rights (ICCPR) as well as Human Rights Watch (HRW), state sponsored militias should abide by IHL. India is clearly in violation of the above law in Occupied Kashmir. Just look at the post-Covid scene inside Occupied Kashmir. With the poor citizens kept in a constant state of security lockdown sans internet and other communications, the Indians are in violation of Article 56 of Fourth Geneva Convention. Indian failure to facilitate international relief efforts in a pandemic zone and their failure as an occupation force to honour their obligations vis-a-vis health and security constitute an egregious breach of international law.
As an offensive lawfare option, Pakistan needs to collect evidence of Indian human rights violations and document them so as to be categorized and presented as war crimes in international fora like the UN Human Rights Council and General Assembly. Kashmiris should be helped in invoking the ‘universal jurisdiction’ clause of the domestic laws of countries like the US, UK, Argentina, Australia, Germany, Belgium, Canada, Norway and Sweden. The evidence collection efforts should be instituted under a legal statute through any university or its affiliated Area Study Center’s Charter Act. A vice chancellor can notify a committee as a statutory entity for collection and documentation of evidence which should be funded as a project by the Ministry of Finance.
In an increasingly polarized international environment where competing alliances led by China and the US predict conflictual regional dynamics, Pakistan needs to build up its human resource and organizational capacity to mount a robust lawfare offensive rather than acting passively on reactive mode. Pakistan faltered on its FATF compliances because of inadequate international law expertise and a lack of understanding of sum and substance of the FATF, thinking that what worked for it in 2012 would also work in an altered 2018 environment. Apart from capacity building, Pakistan should be careful in accepting international law obligations that it cannot fulfill.
Capacity building of our international lawyers and creation of a strong central hub at the national level for coordinating the lawfare efforts is no more a strategic choice but a national security imperative.
Note: This article appeared in The News, dated 18 April 2021.
Disclaimer: The views expressed in the article are of the author and do not necessarily represent Institute’s policy.